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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2640
___________
AVNI JAHJAGA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A079-453-765)
Immigration Judge: Honorable Eugene Pugliese
____________________________________
lack of jurisdiction.
The facts and procedural travel of this case are well-known to the parties and have
been recounted in our previous decision, Jahjaga v. United States Attorney General, 512
F.3d 80 (3d Cir. 2008). Jahjaga is a native of Serbian Montenegro and citizen of Kosovo
whose applications for asylum and other relief were denied after a removal hearing in
2003. The Board affirmed the IJs denial of asylum relief in 2005 based on the lack of
sufficient documentary evidence to support Jahjagas claim that he was shot in the spine
in 1999 (rendering him paraplegic) on account of his political activities as a ranking
member of the Democratic League of Kosovo (DLK). Instead of filing a petition for
review, Jahjaga filed a motion to reopen in which he supplied the corroborating evidence
that the BIA had identified as central to his asylum claim. The Board denied reopening in
August 2005, ruling that the documentary evidence was not new because it was
reasonably available before the hearing, and it was insufficient to show changed country
conditions. The Board denied Jahjagas second motion to reopen as untimely, rejecting
his claim that he had not received the August 2005 order. We remanded the matter to the
BIA to consider the weight to be accorded Jahjagas claim of non-receipt of the Boards
order. Jahjaga, 512 F.3d at 85-86. On remand, the BIA reaffirmed its denial of Jahjagas
motion to reopen. (See BIA Decision dated July 28, 2008.) Jahjaga did not file a petition
for review.
On October 6, 2008, Jahjaga filed a motion to reopen seeking asylum on
The Board denied Jahjagas request for relief on May 9, 2009. The Board
reasoned that Jahjagas failure to provide corroborating evidence of past persecution at
his removal hearing rendered him unable to establish a nexus between the harm he
claims to have suffered and his political opinion for purposes of establishing grounds for
humanitarian relief.2 (J.A. at 4.) Thus, according to the Board, because of Jahjagas
failure to show past persecution, neither the IJ nor the BIA had reason to consider
asylum for humanitarian reasons at the hearing or on appeal. (Id.) As for Jahjagas claim
that he was unable to return to Kosovo because he could not obtain medical treatment for
his paralysis there and had no one to care for him, the Board noted that the Department of
Homeland Security, not the Board, could grant deferred action status for medical reasons
as a matter of discretion. (Id.) The Board declined to reopen proceedings sua sponte and
denied the motion. Jahjaga filed this timely petition for review.
Jahjaga contends that the Board wrongly denied reopening to consider his request
for humanitarian asylum and erroneously failed to consider his documentary evidence of
condition, and medical records documenting his gunshot wound to the spine.
2
In Sheriff v. Attorney General, 587 F.3d 584 (3d Cir. 2009), we explained that,
under 8 C.F.R. 1208.13(b)(1)(iii), an alien who has suffered past persecution and who
does not face a reasonable possibility of future persecution may be eligible for a
discretionary grant of asylum on humanitarian grounds if (1) he can demonstrate
compelling reasons, arising out of the severity of the past persecution, for being unwilling
or unable to return to the designated country, or (2) he has established a reasonable
possibility that he may suffer other serious harm upon removal to that country, which
does not arise out of the past persecution but which is so serious as to equal the severity
of persecution. Id. at 593 & 596.
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past persecution under 8 C.F.R. 1003.2(c). The Government asserts that the BIA did
not abuse its discretion in denying reopening because there was no record evidence of
past persecution warranting humanitarian relief. The Government also argues that, to the
extent that the BIA declined to reopen sua sponte pursuant to its authority under 8 C.F.R.
1003.2(a), we lack jurisdiction to review Jahjagas claim.
We begin and end with the threshold question of our jurisdiction to review the
BIAs decision in Jahjagas case. Pursuant to 1003.2(a), the BIA may sua sponte
reopen a case at any time. A petitioner must show an exceptional situation to make a
prima facie case for sua sponte reopening. Cruz v. Attorney General, 452 F.3d 240, 249
(3d Cir. 2006). However, the BIA has discretion to deny a motion to reopen even if a
prima facie case is made. Id. We have held that the BIAs failure to sua sponte reopen a
decision based on its unfettered discretion is not reviewable. Calle-Vujiles v. Ashcroft,
320 F.3d 472, 474-75 (3d Cir. 2003).
Here, the BIA noted that Jahjaga requested reopening for humanitarian asylum.
. . and for sua sponte reopening. After providing the legal standard for humanitarian
asylum with citations to the regulation and relevant caselaw, the BIA stated that neither
the IJ nor the Board had reason to consider humanitarian asylum based on the hearing
record. The Board then stated that it declines to reopen proceedings under its
discretionary sua sponte authority at 8 C.F.R. 1003.2(a). The motion to reopen will,
therefore, be denied. Notably, the BIA did not address the question whether the motion
to reopen was number or time-barred under 8 C.F.R. 1003.2(c). We read the BIAs
decision declining to reopen proceedings as an exercise of its unfettered discretion. Thus,
we lack jurisdiction to review it.3 Calle-Vujiles, 320 F.3d at 474-75.
Accordingly, we will dismiss for lack of jurisdiction Jahjagas petition for review
of the Boards denial of reopening pursuant to 8 C.F.R. 1003.2(a).
The facts in this case are not similar to those that we discussed in Cruz v.
Attorney General, 452 F.3d 240, 249 (3d Cir. 2006), where we questioned whether the
BIA could, without explanation or reason, depart from a settled practice when declining
to exercise its authority to sua sponte reopen proceedings. Here, the BIA has not adopted,
either explicitly or through practice, a policy of applying a particular rule or standard to
its consideration of motions to reopen based on a claim of humanitarian asylum.
6